Hillary Clinton’s Destruction of Emails Was a Federal Crime

Eric Zuesse

However, our laws have been written so as to protect government officials, and corporate executives, if and when they are prosecuted for it. This leaves considerable discretion for prosecutors and judges to let them off the hook; and, as a consequence of this rampant discretion, there are numerous similar cases that receive starkly different procedural and judicial outcomes (a classic definition of “injustice”); so that, in this, as in so many other aspects of government in the United States, our country is far more a government by persons, than it is a government by laws. 

This means that the legal outcome of former Secretary of State Hillary Clinton’s attempt to destroy the evidence on the email server that she had had installed in her basement, will depend not so much on what the laws are (which are intentionally vague), but on who is investigating, reporting, and making decisions about that case. 

For an elementary example showing how arbitrary our system is about such matters, consider that this case ended with no prosecution of the police officers. A former Secretary of State who is also the leading candidate for President of the United States, may be presumed to be at least as likely, as they, to avoid even weak penalties for her evidence-tampering, regardless of how heavy the legal penalties might be for what she did if the perpetrator were only a regular powerless citizen doing essentially the same thing (and this is true regardless of whether or not there were top-secret documents on that unsecure server — the feature of the case which is the almost exclusive focus of media-coverage and federal investigation about the event).

For example: if the only reason why she destroyed that evidence was in order to prevent voters from knowing her private connections to persons and organizations that her Department was doing business with, and the ‘top-secret’ matter weren’t involved at all in the case, then what she was doing by deleting the records might not have been technically “criminal” at all, yet its outcome if she becomes President might be far more harmful to the nation than any lapse of state-security from unsecured private possession of top-secret information would be, or might have been.

So: on the face of it, what Secretary Clinton did was evidence-tampering and thus a federal crime, but to expect it to be prosecuted to the full extent of the law, or even at all, would seem to be unlikely. It might be, in the American system, permissible crime. 

See:

https://en.wikipedia.org/wiki/Spoliation_of_evidence

https://en.wikipedia.org/wiki/Tampering_with_evidence

https://www.law.cornell.edu/uscode/text/18/1519:

18 U.S. Code § 1519 – Destruction, alteration, or falsification of records in Federal investigations and bankruptcy

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

    US Code

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Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

(Added Pub. L. 107–204, title VIII, § 802(a), July 30, 2002, 116 Stat. 800.)

http://www.insidecounsel.com/2013/07/18/litigation-sanctions-for-spoliation-of-evidence

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1218&context=dlj:

[p. 1254, or p. 40 of the 122-page pdf discussing in this passage the Sarbanes-Oxley law’s changes to the criminal laws that had existed before Arthur Anderson & Co. accountants had evidence-tampered Enron’s audit-reports:] What if the documents are destroyed to guard against whatever suit might arise, without having specific litigation in mind? For example, how would the provision apply to the ongoing destruction of safety test records by a manufacturer when there is no specific plaintiff — perhaps not even a specific buyer for the product? Arguably, such upstream behavior would still fall outside the bounds of new section 1512(c).152 At the very least, Sarbanes-Oxley does little to resolve the issue. … If Andersen had been destroying audit-related documents as it went along, rather than after it learned of the SEC inquiry in October 2001, would it have been criminally liable under new section 1512(c)? Arguably not.

Regarding her likely Republican opponent (if she wins the nomination), Donald Trump, the three class-action lawsuits against him regarding Trump ‘University’, are presently civil fraud cases instead of federal criminal ones; but that could change. Trump, an aristocrat himself, has lots of enemies within the aristocracy. Unlike most of the other aristocrats, his fortune is in real estate instead of stocks; so, the Wall Street banks and the private equity and hedge fund people who finance most of American politics don’t like his plans on taxes and on shipping jobs overseas to lower-wage countries (so as to boost corporate profits). Already, Republican billionaires, such as Marlene and Joe Ricketts, founders of TD Ameritrade, are running Super-PAC ads against him on the Trump ‘University’ matter.

The Ricketts are dyed-in-the wool Republicans but they might support Clinton this time around — lots of Republican as well as Democratic billionaires might do that.

In 2012, the Ricketts had hired a firm to draw up a plan to stir hatred against President Obama. The plan as presented to them was titled “The Defeat of Barack Hussein Obama: The Ricketts Plan to End His Spending for Good.” It opened by saying, “Our plan is to do exactly what John McCain would not let us do. Show the world… the elephant in the room. … The metrosexual black Abe Lincoln has emerged as a hyper-partisan, hyper-liberal, elitist politician with more than a bit of the trimmer in him.” The plan became described on 17 May 2012 in The New York Times, in a news story, by Jeff Zeleny and Jim Rutenberg, headlined “G.O.P. ‘Super PAC’ Weighs Hard-Line Attack on Obama.” They reported that the 54-page document was being considered by Joe Ricketts, who was aiming to spend $10 million in 2012 to get Republicans elected. “Lamenting that voters ‘still aren’t ready to hate this president,’ the document concluded that the campaign should ‘explain how forces out of Obama’s control, that shaped the man, have made him” the wrong person to lead the nation “in these days and times.” It recommended “full-page newspaper advertisements featuring a comment Mr. [Rev. Jeremiah] Wright made the Sunday after the attacks of Sept. 11, 2001. ‘America’s chickens are coming home to roost,’ he said.” The Ricketts servant who had prepared this plan was evidently desperate, because voters, as his plan said, “still aren’t ready to hate this president.” The Jeremiah Wright attacks fell flat against Obama in 2008 and would be even less successful now four years later; so, Ricketts spent his campaign money elsewhere. And now, he’s spending his money in an attempt to prevent Trump from winning his Party’s nomination.

With both Republican and Democratic billionaires determined to block Trump from the White House, maybe it will be Trump instead of Clinton who ends up being indicted. Unlike Clinton, he doesn’t have friends in the right places. But anyway, the relative merits and demerits of candidates have little to do with the matter. Nor do the laws.

—————

Investigative historian Eric Zuesse is the author, most recently, of  They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010, and of  CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.

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  • Skip V. Patel

    Hildog’s other crimes, such as her illegal wars (in the service of Saudi Arabia) and transfer of arms to terrorist groups in Libya and Syria…..are far worse than the email scandal.

    The United States Code is unequivocal: “providing material support to terrorists” is a crime:

    18 USC § 2339A – Providing material support to terrorists

    18 U.S. Code § 2339B – Providing material support or resources to designated foreign terrorist organizations http://tinyurl.com/ncohd8g

    “Whoever knowingly provides material support or resources to a foreign
    terrorist organization, or attempts or conspires to do so, shall be
    fined under this title or imprisoned not more than 20 years, or both,
    and, if the death of any person results, shall be imprisoned for any
    term of years or for life. To violate this paragraph, a person must have
    knowledge that the organization is a designated terrorist organization
    (as defined in subsection (g)(6)), that the organization has engaged or
    engages in terrorist activity (as defined in section 212(a)(3)(B) of the
    Immigration and Nationality Act), or that the organization has engaged
    or engages in terrorism (as defined in section 140(d)(2) of the Foreign
    Relations Authorization Act, Fiscal Years 1988 and 1989).”

    Indict.

  • Don Robertson

    Indict Hillary?

    Was or will Obama ever be indicted?

    Well, I’m impressed.

  • kimyo

    sanders on 2015-10-14: “But I think the secretary is right, and that is that the American people are sick and tired of hearing about your damn emails.”

    • Don Robertson

      Well that’s an innovative legal argument.

      “i’m sorry Mrs. Finicum, the American people are sick and tired of hearing about your damn dead husband.”

      Such a legal argument works just about everywhere.

    • cettel

      Here’s why he does that: His function now is to win the Democratic Party’s nomination, to beat Hillary; and the way he’s going about it, strategically, is to maximize his net-approval, the ratio of approval/disapproval, among voters in Democratic Party primaries and caucuses — for his ratio to be higher than Hillary’s is (and Hillary’s has always been high among voting Democrats; he wants his to be even higher, so as to be able to win the nomination).

      When one candidate in a Party primary overtly attacks another candidate, it’s an attack against a member of the same Party and therefore will be taken as being also an attack against that person’s supporters, that person’s voters. Sanders doesn’t want to offend them; so, he instead focuses upon policy-differences between himself and his opponent. This is strategically the correct thing to do.

      Privately, Sanders might think that Hillary’s evidence-tampering, even evidence-destruction, was disgusting; and it certainly is illegal; but for him to say so within a Democratic forum where he’s trying to draw her voters to himself, not repel them by attacking her character, it’s not an opinion he’d be smart to share publicly.

      I could go on about Sanders’s strategic brilliance, but it’s really more like strategic discipline, because what he’s doing is the same thing that Obama himself did to her in 2008, to great effect, which partly accounts for his having beaten her. Sanders saw it; he recognized the tactic’s soundness; and he’s simply copying it.

      It’s not the function of a primary candidate to expose his opponents’ character-flaws; that’s the function of the press in a democracy; I am part of that press, but Sanders isn’t; so, I do my job in a democracy (to the extent that democracy still exists here, which it does at this blog and a few others). It’s our job to expose the fakes and frauds; and a few of us are doing the best job of that we can, but anyone who would expect a participant in a primary to be doing that job is an idiot.

      • kimyo

        if i was as polite as bernie i’d have to accomodate your ‘primary colors’ fantasy worldview. fortunately, i’m not.

        that bullshit carville ‘strategic’ nonsense is why we have a fully corrupt and probably irredeemable political system today.

        if there ever were a year to ignore zuesse’s ‘strategy’ and ‘rules of combat’ it is 2016. he’s reporting on a staged world wrestling match as if it’s real. a truly astounding lack of comprehension.

        • truthtime

          Eric is of the old guard. He wants to hold onto a slim hope of the failed Two Party system – and thus fully vested in the ‘idea’ of it. Bernie is a pipe dream.

          All 3 candidates will be co-opted by the Deep State. There is no stopping the inevitable collapse in America or the trillion dollar debt. Its just not happening, the train already left the damn station. There are two many vested, corrupt people in the government that will not let go of what they have – and continue their disastrous policies. Likewise there are millions of citizens that are simply clueless.

          Just look to history – could Roman citizens stop the eventual collapse of Rome? Uhm, that’s a Big Nope. Could British citizens stop the collapse of the British Empire? Oh hey, Nope.

  • Rockie Springer

    Missed one. Missed one most important.

    18 U.S. Code § 2071 – Concealment, removal, or mutilation generally

    (b)
    Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other
    thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States

    https://www.law.cornell.edu/uscode/text/18/2071

    What I want to know is why is this federal code NOT being made public?? Obviously she is being protected. She should be in a jail cell NOW………….

    • This is the piece of the great puzzle most everybody is missing R.S..

      October 23, 2014 Special report: America’s perpetual state of emergency

      The United States is in a perpetual state of national emergency. Thirty separate emergencies, in fact. An emergency declared by President Jimmy Carter on the 10th day of the Iranian hostage crisis in 1979 remains in effect almost 35 years later. A post-9/11 state of national emergency declared by President George W. Bush — and renewed six times by President Obama — forms the legal basis for much of the war on terror.

      http://www.usatoday.com/story/news/politics/2014/10/22/president-obama-states-of-emergency/16851775/

    • cettel

      THAT IS A SUPERB POINT, because it disqualifies her for any federal office. She would be an illegal President if she were to win.

      Thank you!!

      • Rockie Springer

        I have been trying to make as many people as I can aware of this fact. And that this fact is purposely being avoided.

        The US has been reduced to a two tiered caste system. The protected — government people, Wall Street and major corporation execs., judges, cops, etc. And the rest of us are totally unprotected. Unprotected from the protected.

        This also proves the point she is being protected by the Whore House and the InJustUs system. Who seem to have plenty of time and energy to attack Apple for not submitting and giving the the key code to all IPones, Or execute people who stand up for their rights. And more than plenty of time to cover up the crimes of the administration that the American people are being blamed for………

  • Daniel Bruno

    “our country is far more a government by persons, than it is a government by laws. ” THAT is the essence of the entire bogus “War on Terror” that terrorizes Americans. Everybody and anybody can be a suspect for any reason or no reason. The similarities to Stalin’s USSR are distressing.

  • jo6pac

    It’s only a crime if little people do it and not the so-called elite.

    • Cheers, I will drink to that!

  • Feb 14, 2016 FLASHBACK: Hillary Clinton On Black “Super Predators”

    Peace & Prayers for Julie Dombo & Countless Innocent Victims of American Gun Violence.

    https://youtu.be/rFWVc649t-k

  • Nexusfast123

    No one will bring Clinton to book and the election will be fiddled so she wins. There will be no stopping the ultimately destructive neocon agenda.

  • Jim G

    I always wondered how much supposedly classified information I had on my computer. Maybe I have more than Hillary. Everything since long before 911 has been “covert.” Seems the internet is full of information that is not supposed to be known – like pictures of John McCain with ISIS management, or what Hillary was doing in Libya, or tactical nukes have been used several times in recent conflicts, or where is all that poison gas coming from anyway in Syria. That’s just recent, and I have lot’s on 911. I bet that is covert too!
    Scary isn’t it? The FBI is simply trying to cover up their own covert thus criminal activity. You aren’t supposed to know these things.
    Never thought I’d side with Hillary, but get off my back.

  • Mall Mike

    Did she destroy the ‘disk drives’?

    Are the server’s still in her basement? That’s a joke. But the data is still on those disk drives.